Angwin: You are pursuing several defamation cases, which have historically been expensive and costly. Can you explain the risks and rewards of pursuing a defamation strategy in order to protect democracy?
Solving the disinformation problem is going to require a multifaceted approach, and defamation litigation is only one tool in the toolbox. But over the past several years, one of the only effective responses to our currently historic levels of anti-democratic disinformation has been defamation litigation. It was a defamation suit that forced Fox News to cancel Lou Dobbs’s show
. It was a defamation suit that forced several publishers and broadcasters to retract false claims that a murdered former DNC staffer
was the person responsible for the 2016 hack of the party’s email accounts. So while defamation litigation can’t address all instances of political disinformation, we’ve already seen it have a real impact.
However, defamation suits do have their downsides. First, defamation litigation brought in bad faith risks chilling protected speech. We think the Supreme Court’s “actual malice” doctrine, which is purposefully formulated to protect First Amendment interests, accounts for that risk. But it also means that it’s often the legitimate cases with the greatest impact on our democracy, such as those concerning intentional or reckless political disinformation, that are the most difficult cases to win. Moreover, these cases take time to litigate and resolve. They’re deeply fact-bound, requiring discovery into a speaker’s knowledge and intent as well as into the issues of injury and damages. So defamation suits present a longer-term strategy and don’t usually help stop disinformation in real time.
Angwin: What do you think would help stop disinformation in real time?
Williams: To take a historical perspective for a moment, our current era is not the only time the United States has struggled with disinformation. It’s not even the first time we’ve struggled with political disinformation that posed challenges for our democracy. The primary drivers of what makes this moment different, however, are the unprecedented changes—at least in scale—in our information technology. One aspect of these changes is the decentralization of who is speaking and how, which is what our defamation litigation strategy seeks to address. But another aspect of these technological shifts is how quickly they allow disinformation to be spread and amplified across networks. So, on that front, we’ll likely also need interventions in the gatekeepers’ space if we want to slow or stop the spread of disinformation in real time.
One of your lawsuits accuses the website Gateway Pundit of publishing knowingly false information about two Georgia election workers, falsely alleging that they ran Joe Biden ballots through the counting machines more than once. Can you describe what happened and how it has affected these workers’ lives? [I reached out to Gateway Pundit for a response to the allegations in the Protect Democracy petition
and did not receive one.]
Williams: After the Trump campaign and other outlets initially spread the lie that election workers in Fulton County, Ga., swung the election for Joe Biden, The Gateway Pundit proudly asserted that it was the first outlet to specifically name our clients in connection with that lie. As a result of the falsehoods The Gateway Pundit and others published about our clients, Ms. Freeman and Ms. Moss suffered terrible harms. They’ve been harassed both online and in person, their personal and professional reputations have been damaged, and they’ve feared for their safety and the safety of their families. Ms. Freeman had to flee her home at the FBI’s recommendation.
Angwin: What redress are you seeking for these workers?
Williams: We’re seeking justice for Ms. Freeman and Ms. Moss, in addition to accountability for the entities that knowingly and deliberately spread dangerous lies about them. In practice, that’s compensatory and punitive damages, as well as a court order requiring these defendants to retract the defamatory statements. They deserve to be made whole.
Angwin: Defamation cases appear to be proliferating in political media coverage. Conservatives like Devin Nunes and Nicholas Sandmann have sued over coverage they don’t like, while two voting machine companies are pursuing defamation claims against Fox News and others. Is defamation a new weapon in the battle over the information landscape?
Williams: We wouldn’t call defamation litigation “a new weapon.” It’s actually an old cause of action that predates the United States. Over centuries, defamation law has evolved alongside our information ecosystem. The invention of the printing press, rise of national newspapers, and onset of radio and television broadcasts all led to spikes in defamation litigation and contemporaneous developments in defamation law to balance the value of individuals’ reputations against the value of public debate and access to information. What we’re currently experiencing are this era’s attempts to grapple with the impacts of the most recent technological changes within our information ecosystem.
Angwin: How important is a healthy information ecosystem to democracy? And will a successful defamation suit against a publisher like Gateway Pundit help clean up the system by deterring others from publishing fake news?
Williams: Generally speaking, healthy democratic governance is premised on the open and free-flowing exchange of ideas and information. To further that exchange of ideas and information, traditional news outlets operate under a set of common journalistic standards. In our modern media landscape, not all outlets that hold themselves out as “news” outlets share that commitment to journalistic standards. This has flooded our information ecosystem with rampant lies and falsehoods. So our goal here is to use these suits to hold these entities to the same standards the rest of the news media is held to because facts matter. There can’t be government by and for the people without a shared understanding of basic facts.
Angwin: What do you say to critics who say that defamation cases are a way for wealthy and powerful people to try to silence their critics?
Williams: It’s true that powerful people in the United States and elsewhere have deployed defamation lawsuits in abusive ways. You can look at the many libel suits brought and threatened by Donald Trump as one example. But we’re not bringing those cases. And we’re working hard to select cases where winning will not require us to succeed in changing the law in ways that would open the floodgates for abusive lawsuits. In this country, we have both federal and state laws that provide protections against abusive defamation litigation. That doesn’t mean there won’t be abusive lawsuits going forward, or that some of them won’t succeed. But we don’t see our work as enabling that kind of litigation.